Court hears challenge to NLRB recess appointments

WASHINGTON — Republicans and business groups told a federal appeals court Wednesday that President Barack Obama violated the Constitution earlier this year when he bypassed the Senate to fill vacancies in his administration.

Attorneys for the groups told a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit that Obama abused his power in January when he made recess appointments to the National Labor Relations Board.

“I would suggest there is a huge cloud hanging over the National Labor Relations Board right now,” said Noel Francisco, attorney for the U.S. Chamber of Commerce and other groups challenging the action.

The case is an important test of presidential power and could determine whether the Senate can indefinitely block presidential appointments by refusing to adjourn. Senate Minority Leader Mitch McConnell of Kentucky came to watch the hearing in a packed courtroom. McConnell and 46 other Senate Republicans filed a friend-of-the-court brief arguing the appointments are invalid.

At issue: When is the Senate in session, when is it in recess and who gets to decide? Certain high-profile appointments must be confirmed by the Senate, but if lawmakers are away for the holidays or other breaks, the president can act on his own with a recess appointment.

Obama made the labor board appointments while the Senate was on a 20-day break over the Christmas and New Year’s holidays. But his opponents claim it technically stayed in session because it was gaveled in and out every few days for so-called pro forma sessions. GOP lawmakers used the tactic specifically to prevent Obama from using his recess power.

Deputy Assistant Attorney General Beth Brinkmann argued that the pro forma sessions — some lasting less than a minute — were a sham. Any other interpretation, she said, would frustrate the Constitution’s intent to make sure the president can fill vacant offices at all times.

“There is a long, long history that would be disrupted,” she said.

Francisco said it’s up to the Senate — and not the president — to decide whether lawmakers are really in session. The test can’t be whether the Senate is busy, he argued, because “they were fully capable of conducting work” during the pro forma sessions.

Judge Thomas Griffith, who asked most of the questions, suggested the issue might be a purely political dispute into which the court should not intrude.

“Why drag us into it?” asked Griffith, who was appointed to the court by President George W. Bush.

Francisco said the court had to decide because the labor board is making hundreds of decision that would be invalid if the three board members were improperly appointed.

Griffith noted that the Senate itself could have taken an official position in the case but did not, raising questions about how to determine the Senate’s intent.

“The court must defer to the Senate calling its work a session in the absence of evidence it’s not,” said Miguel Estrada, attorney for Senate Republicans. He said Obama was trying to evade the primary role of the Senate to advise and consent on nominations.

Griffith asked whether that meant the president could consider weekends or lunch breaks sufficient to make recess appointments. Brinkmann said those would not meet the basic requirement for a recess.

Griffith said it was clear that the reality of recess appointments had changed from that envisioned by the framers of the Constitution.

“Presidents have become frustrated by the way the Senate has treated their nominations” by holding some of them up for months, Griffith said. “That’s not what the Recess Appointment Clause was about.”

The two other judges on the panel are David Sentelle, appointed by President Ronald Reagan, and Karen LeCraft Henderson, who was appointed by President George H.W. Bush.

The case is being brought by Noel Canning, a Washington state bottling company challenging a labor board decision that it must enter into a collective bargaining agreement with a labor union. The company argues that the board did not have a quorum to issue a decision because the recess appointments are invalid.

The case is similar to dozens around the country that have been winding their way through the legal system since the Jan. 4 appointments. The 7th U.S. Circuit Court of Appeals in Chicago heard arguments challenging Obama’s recess appointments in another labor case on Friday.

Obama has said he made the three recess appointments to prevent the labor board from being effectively shut down, unable to rule on unfair labor practices or referee labor-management disputes. Senate Republicans, infuriated at the board’s pro-labor decisions, had vowed to block the appointment of any new members. The five-member board must have at least three members to conduct business.

Obama also invoked his recess appointment power in January — over strong GOP objections — to install Richard Cordray as director of the newly formed Consumer Financial Protection Bureau. Cordray’s appointment was not at issue in the case before the appeals court Wednesday but has been challenged separately.

Senate Democrats first began the practice of using pro forma sessions in 2007 to block President George W. Bush from making recess appointments.